Date: 20131119
Docket: IMM-11580-12
Citation: 2013 FC 1174
Ottawa, Ontario, November 19, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
|
|
SUZANA PRECI
FLAVIA-ALESSIA PRECI
LUISON LEONARDO PRECI
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Refugee Protection Division of the
Immigration and Refugee Board of Canada [RPD] denied the Applicants’
application for refugee protection on the grounds that they failed to provide
sufficient and credible evidence to support a well-founded fear of persecution
as required by ss. 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27.
[2]
Suzana Preci is a 43 year old citizen of Albania. The two other applicants are her daughter and her son.
[3]
In her Personal Information Form [PIF], Ms.
Preci states that she is claiming protection because she fears “ill-treatment
or even murder from Lekë Preci (my ex-husband), his family and the males of the
Nikolli family [i.e. her family]”
[4]
I can find nothing unreasonable in the findings
of the RPD that Ms. Preci had failed to establish that she was at risk from
either Lekë Preci or his family. She testified that although she had been a
battered spouse during their marriage, they were now divorced and she did not
know where her ex-husband was or whether he was looking for her. She also admitted
that neither Mr. Preci, nor his family, had declared a blood feud on her
family.
[5]
However, the analysis by the RPD of the other
agent of persecution, her own family, I find to have been unreasonable because
it was based on speculation and perverse inferences, and ignored evidence.
Background
[6]
Ms. Preci’s extended family practices medieval
customs, prevalent in Northern Albania, known as Lek Dukagjini. These customs
view women as chattel and hold the male family honour in the highest esteem.
In 1999, Ms. Preci’s family forced her to marry Mr. Preci, a man she had never
met. Following their marriage, she moved to Italy where Mr. Preci resided and
worked.
[7]
For the next 10 years, Ms. Preci was physically
and emotionally abused: she was repeatedly raped, beat, threatened with death,
and mentally abused. Her children were also victimized by Mr. Preci.
[8]
In 2002, Ms. Preci called her family and asked
if she could divorce Mr. Preci given the abuse she and her children were
suffering. Her family told her she could not divorce Mr. Preci and that if she
did, she should never return.
[9]
In 2009, Ms. Preci called the police to report
the abuse but requested that they not take any action because she was afraid of
Mr. Preci’s response. Around this time she also told Mr. Preci that she
intended to divorce him. In response, he threatened to kill her and he
transferred ownership of the matrimonial home to his brother to protect the
asset in the event of a divorce.
[10]
On June 7, 2010, a decree of divorce was
obtained by Mr. Preci, in Albania, without Ms. Preci’s knowledge. On June 22,
2010, Ms. Preci returned to Albania. Her family learned of the divorce and
told her that she had brought dishonour to their family and that the family
felt obligated to kill her themselves if she did not leave Albania.
[11]
On June 27, 2010, Ms. Preci fled to the United States where she met her sister. A second sister who lived in Canada eventually helped her come to Canada on August 1, 2010. While in the U.S., Ms. Preci did not file for asylum.
[12]
In 2000, a cousin of Ms. Preci’s who was
divorced by her husband, was sent back to her family. She had allegedly had a
relationship with another man. Despite being pregnant, her own family killed
Ms. Preci’s cousin in order to restore the family honour.
Decision
[13]
The RPD emphasized the fact that it was Mr.
Preci who obtained the divorce without Ms. Preci’s knowledge and that as a
result of having been the recipient of the divorce and not the initiator, she
had not broken the Lek Dukagjini code. The RPD found that there was no basis
for the breach of her family’s honour and no reason for them to seek
retribution. On this basis, the RPD found that Ms. Preci was not at risk at
the hands of her own family.
[14]
The RPD also commented on the fact that Mr.
Preci did not give evidence at the hearing and did not accept Ms. Preci’s testimony
that Mr. Preci blamed her for the divorce because, in the RPD’s view, it was
“against the grain of common sense and reason that after [Mr. Preci] obtained
the decree of divorce in Albania without the knowledge of [Ms. Preci], he would
still blame her for his action of divorcing her.” On this basis, the RPD
determined that Ms. Preci’s evidence deserved “no weight at all” and that her
claim of fear of her own family was not believable.
Issue
[15]
The Applicants raise a multitude of issues,
which are just variations of the central issue: was the RPD’s decision that Ms.
Preci had no fear from her family unreasonable because it ignored evidence or
came to perverse or capricious findings?
Analysis
[16]
There are four reasons that the RPD’s decision
in this case was unreasonable:
1.
The RPD unreasonably inferred that Ms. Preci had
not broken the ancient code of Lek Dukagjini because it was Mr. Preci who
obtained the divorce;
2.
The RPD perversely determined that because Mr.
Preci filed for divorce, he would not have continued to blame his ex-wife for
the divorce and disregarded evidence to the contrary;
3.
The RPD drew an adverse inference from an
inconsistency between Ms. Preci’s testimony and her PIF, which did not exist;
and
4.
The RPD failed to give reasons for excluding
probative evidence.
[17]
The RPD’s determination that there was no basis
for the assertion that there was a breach of family honour and therefore no
reason to fear persecution, was grounded in its assessment of the consequences
of it having been Mr. Preci and not Ms. Preci who obtained their divorce:
It can not be said
nor even be implied that [Ms. Preci] broke the ancient code of Lek Dukagjini,
as there was no evidence adduced that she caused or forced her ex-husband to
obtain the divorce decree. It is not even plausible or credible that she could
have caused or forced her husband to divorce her, given her central allegation
that she was totally abused and dominated by her ex-husband for all the time
they were together in Italy. The principal claimant’s statement in her
narrative, ‘I would be a shame to the family if I divorced Leke Preci,’
and her further statement that her actions in divorcing Leke Preci are
not consistent with the evidence that it was Leke who divorced her. (emphasis
in the original)
[18]
It is apparent from a review of the transcript
of the hearing that when Ms. Preci made statements that she would be a shame to
the family if she divorced her husband, she was not referring to the act of
initiating an action for divorce herself, but of becoming divorced, regardless
of who initiated it. All of her references to “divorcing” refer to divorce in
the general sense and she never places any importance on who filed for
divorce. For example, the RPD asked her directly whether there was any
significance to the fact that it was the husband who filed for divorce and not
her:
Presiding Member: Now – and listen to my question carefully – the fact that it was
your ex-husband… who divorced you… would that not impact on your family’s
position that you brought dishonour to them?
Claimant: This is precisely the reason that he asked for the divorce.
…
Presiding Member: Because the divorce brought dishonour and disgrace to your family…
Okay. Now I’m going to ask you again. The fact that it was not you who sought
the divorce; it was Leki Preci… would that not change how your family feels
towards you that you were not the one who brought disgrace and honour to your
family?
Claimant: It is precisely such divorce which rendered my position vis-à-vis my
family even more difficult. Because that divorce implies that I am the reason
behind the divorce.
[19]
Ms. Preci clearly answered the RPD’s question by
saying that it was the act of divorce itself, irrespective of who filed for it,
that was dishonourable. She repeatedly stated during the hearing that “my
family would never agree to a divorce, even if I could have been the person
filing for the divorce,” and that “any kind of divorce was objected by
my family” (emphasis added).
[20]
This evidence is not inconsistent with her PIF
wherein she also appears to be speaking generally about being divorced except
for the occasions when she is speaking directly of the possibility of her
divorcing her husband.
[21]
Ms. Preci’s evidence was that it is the act of
divorce itself that brings shame to her family, irrespective of who filed for
the divorce. There is no reason for the RPD to discount her repeated testimony
that any divorce would subject her to the persecution she feared at the hands
of her family.
[22]
I also take issue with the RPD’s conclusion that
it is “against the grain of common sense and reason” that a husband who files
for divorce would continue to blame his ex-wife for the divorce. This
conclusion is itself devoid of common sense and reason and is directly
contradicted by the evidence.
[23]
First, on a strictly logical level, it is completely
conceivable that a man who verbally, psychologically, physically, and sexually
abused his wife for years, would file for divorce and then continue to
psychologically abuse her by blaming her for it. In fact, in many divorce
situations, filing for divorce while blaming your spouse for being the root
cause of the divorce is not uncommon. Even if it is uncommon, the fact remains
that the two acts are not mutually exclusive.
[24]
Second, the official judgment granting the
divorce itself states that Mr. Preci, the plaintiff, blames the divorce on Ms.
Preci. The translated judgment reads “the reports have become weak and
therefore the plaintiff accuses his ex for good behaviours toward him.” This
is clearly a translation issue as you cannot blame someone for “good behaviour”
but what the decision actually said was clarified by Ms. Preci at the hearing:
Presiding Member: “The plaintiff accuses his ex for good behaviours towards him.” … It
doesn’t make sense to me… Okay. So the cause of it. I, I didn’t come across
anything in the divorce judgment that you [Ms. Preci] were the reason for or
you were the cause of the divorce.
Claimant: I
have given a very careful reading to the court judgment. I’ve read it in
Albanian, of course. And it says, and it states that the relationship in
this, relationships in this family are in a bad shape through my [the
Applicant’s] fault. (emphasis added)
[25]
In ignoring this evidence, the RPD also made
note of the fact that Mr. Preci himself did not show up to the hearing to give
evidence as to who filed for divorce and who was to blame, and perversely,
seems to have drawn some sort of adverse inference from this. I cannot
conceive of any situation where one would expect the ex-husband of someone whom
he abused to show up to their refugee protection hearing. There is nothing
relevant about the fact that Mr. Preci did not testify at the hearing—it was
illogical to expect him to testify and it is not a valid reason to ignore the
documentary evidence and Ms. Preci’s testimony.
[26]
Finally, the RPD also failed to address the evidence
that Ms. Preci’s cousin was killed by her family after she and her husband were
divorced. At the hearing the Member said that he did not see it as relevant,
but fails to state the reason for so finding. At first blush, it appears quite
germane to the claim and strong evidence of the family’s views on women who
bring dishonour to the family by divorce. Counsel for the Respondent pointed
out that Ms. Preci’s cousin was the person who filed for divorce and that she
had been adulterous. If this was the basis on which the RPD determined that
this otherwise probative evidence was irrelevant, it had the obligation to
state that; otherwise, as counsel for the Respondent has done, we can only
speculate as to what the actual reasons for excluding the evidence were.
[27]
In summary, the RPD’s conclusion that because
Mr. Preci filed for divorce, he could not have also blamed Ms. Preci for the
divorce is illogical and is directly refuted by the evidence in the record and the
sworn testimony. Critically, the RPD erroneously used this illogical and
unfounded conclusion to determine that Ms. Preci’s claim that she had broken
the rules of Lek Dukagjini “is simply nonsensical,” that “this evidence
deserves no weight at all,” and that her “fear of her own family is also not
believable.” In drawing an adverse inference on Ms. Preci’s credibility and
discounting her fear of her own family with no evidentiary or logical basis, the
RPD erred and the application must be returned to be reconsidered.
[28]
No question for certification was proposed.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is allowed, the decision dismissing the Applicants’ refugee claims
is set aside and their claim is to be determined by a different Member, and no
question is certified.
"Russel W. Zinn"
Email this Content